Clerk: SJC-12881.
The State of Jacqueline and Kendall, the MassHealth.
-: So first we have Ms. Fine.
-: You need to turn on your mic.
There you go.
-: Good morning, your honors.
(indistinct)
(laughs) How I wish it were true.
(laughs)
Good morning, your honors and may you please record.
Woman: I'm very sorry.
-: What's going on? -: Can you hear me?
-: I'm sorry, we can't.
There's a bit of reverb from the last thing.
(indistinct)
(laughs) Right.
So, I think if you plow, let's -
-: Hey, can you hear now?
-: Right, let's do this.
Ms. Canary, if you could give Ms. Fine 10 more new minutes.
-: Oh, thank you.
Can you hear me now?
-: We can, and you may proceed now.
-: I had forgotten to turn off this subject website.
Good morning, your honors.
My name is Meredith Fine.
I represent the estate of Jacqueline and Kendall.
I've donated some of my time
to Attorney Patricia Keane Martin, on behalf of the Amechi.
If the court has specific questions about MassHealth,
I'll do my best to answer them,
but you might be better served saving them for the expert.
There are two big problems with giving MassHealth.
Unlimited time to file claims against an estate.
One problem is a title problem,
and the other is a problem
with personal representatives liability.
The title problem is this,
if there is real estate in an estate,
the title passes to the heirs immediately
upon the decedent's death.
But the estate retains an interest in that real estate
in order to pay claims and estate expenses.
So as long as the estate is open,
the estate has an interest in the real estate.
And so if the estate is never closed,
that interest in the real estate is never extinguished.
That's problem number one.
Problem number two, is that personal representatives
have personal liability if they misspend a state asset.
And, MassHealth can claw back benefits
that have already been distributed
to the heirs and devisees.
-: So council, may I ask you a question?
Is your position then that there has to
be a deadline because otherwise,
if we adopt the position of MassHealth,
we're going to eliminate the statute of limitations
or the statute of repose,
and these things will be open forever,
and there'll be no closure or certainty.
-: Exactly.
The legislature weighed these two issues.
They gave MassHealth extra time,
but they put in a statute of repose to protect,
to clear titles and to protect personal representative.
20 years from now, MassHealth could find
an unpaid claim in its file
and try to claw back what's been distributed already
and try to bring in the personal representative,
10-20 years later.
Who would serve as a personal representative
under those circumstances?
And you don't even know there might be a mess in play.
So this applies to anybody serving
as a personal representative.
MassHealth makes three main arguments
that I'd like to address.
One is about notice.
If somebody is a resident of a nursing home
and receiving benefits and they die,
the nursing home notifies MassHealth of the death.
In the case of Ms. Kendall, she was never in a nursing home.
She received all of her care in community settings.
And we never had to open probate in the end
and she died intestate without a will.
So MassHealth concern here is,
how does it get notice when somebody
is not in a nursing home
and never needs to go to the probate court?
Well, on the ground,
MassHealth already has plenty of access to that kind
of information.
First of all, MassHealth beneficiaries
have to fill out an annual eligibility claim.
MassHealth has access to the social security
and death index.
And MassHealth already has two more years
than any other creditor.
The second issue that MassHealth brings up-
-: Hey, can I ask a question about,
so I understand the need for a statute of limitations
or a statute of repose.
I'm trying to understand whether
there's a possibility of gaming the system.
Because all of us are paying for that free care
in the nursing homes and other things.
So, tell me how we protect against the clever lawyer
like you, who says wait three years
and you get to have your cake and eat it too.
So how is the state protected against that?
'Cause I'd like to make sure I understand we're dealing,
that you can't prevent us from getting
that money if we're entitled to it.
-: First of all, the reporter's notes address that concern.
The reporter's notes to section 3803,
say that the legislature considered this possibility
that people would kind of squat in these houses until
the three years were up.
And the legislature decided that it's up to creditors
to pursue their claims.
Second of all, you'll have to look at the population that-
-: So, tell me MassHealth can protect itself.
If I have an attentive state government,
they can prevent you from using this three year rule.
Meaning they can force the issue.
MassHealth - Miss. Fine: MassHealth.
-: Go ahead.
Tell me how MassHealth protects us.
-: MassHealth has the ability to open an estate
as any credited does.
-: So as long as they know the person has died,
they can open an estate and force the issue
so that clever lawyers like you can't prevent us
from recouping the cost of the nursing home.
Is that right?
-: That's exactly right. Hon. Scott: Okay.
-: And on the ground, you need to look at the population
that we're talking about here.
Many of these houses stay in people's families
for generations.
When the beneficiary dies, it just goes to their kids.
The kids stay in the house.
These are not folks who have clever lawyers
like me on their speed dial.
And again, I would point to the reporters notes
that the legislature weighed this risk,
and offset this risk in court
by giving MassHealth extra time.
Now, the estate's problem is that there is nobody
with the authority to pay this claim.
The legislature.
Can I keep speaking?
Mike?
I wanna make sure attorney Kane Martin can speak.
-: You still have three and a half minutes or so.
-: Okay.
Well I had given her five minutes of my time.
So, I really wanna to make sure she can still speak right.
-: We manipulated that into the timer.
Hon. Frank: Yeah, right. -: Okay.
So why would the legislature create a system where on the
one hand MassHealth has infinite time to father claim.
And on the other hand, there's nobody to pay the claim.
Why would the legislature creates such
a inconsistent system?
Well, they didn't create an inconsistent system.
The legislature took 20 years.
The mass probate code was considered for 20 years.
MassHealth had plenty of time.
Plenty of input into that process.
There've been two amendments since the probate code went
into effect in 2012.
One set of amendments emphasized how limited the role
of the personal representative is
in Leighton Limited Test Disease.
And the second set of amendments came
from MassHealth itself and do not address this question.
MassHealth brought forward its amendments in 2015.
By 2015, at least one other state, Nebraska
had applied this same language to Medicaid claims in 2012.
So MassHealth had plenty of input
into the probate code.
MassHealth was aware or should have been aware
that other States were applying this to Medicaid plans.
MassHealth put in its own amendments
and did not address this issue.
Now, this year-
-: Ms. Fine?
This time, couldn't the answer be that they believed 803 AF
provided it and that the concern is that wealthy people
can go to a good attorney and be able to preserve their
home and everybody else has to pay for the Nerf nursing home
because they could afford a good lawyer
to preserve their home.
And they didn't think they had the problem 'cause
they had 803 F.
-: Thank you for the opportunity to address 803 F.
MassHealth looks at 803 F as an escape hatch,
and 803 F is not an escape hatch.
It's part of the connective tissue that connects
the probate code to the MassHealth statute when 118 E.
And what 803 F does, that's where MassHealth
actually gets the extra time.
There's nothing in the mass probate code
and there's nothing in the MassHealth statute
that exempts MassHealth from the statute of repose.
What 803 F does, is give by referring to section
118 E, section 32, of the MassHealth statute.
There's a section in there that says that MassHealth can
open probate, get us a special administrator appointed,
and that administrator is not bound by the date of death.
Now, first of all, the special administrator
is just a different flavor of personal representative.
But there's still a personal representative.
There's nothing exempting as special administrator from the
duties and obligations they cover any personal ministry.
But second of all, that section says
that the personal administrator is not tied
to the date of death, except for the statute of repose,
the mass probate code governs every single thing
about a state.
-: So you would just choose to simplify.
You would say 803 F is not an exception to the three years,
but it's an exception to the one year because
of the position that MassHealth is in.
-: That's exactly right.
If the legislature had intended to exempt MassHealth from
the statute of repose, it had 20 years to say so,
and it didn't.
The legislature knew perfectly well,
how to exempt MassHealth or how
to give MassHealth special treatment.
The legislature balanced, competing policy interest here.
They did it with a lot of input, with a lot of time.
And at some point, estates need to close and personal
representatives need to be relieved of liability and titles
need to be clear.
And there's no reason for any court to impute language into
the probate code to solve a problem that doesn't exist
There's no reason to disturb how the legislature
has balanced the different policy interests here.
-: Any further questions of Ms. Fine.
Thank you, miss Fine.
Ms. Fine: Thank you.
-: Ms. Keane Martin, please.
We have to unmute first.
I can't hear her.
-: Unmute
(indistinct)
-: Nope.
No you're not. (chuckling)
I'm sorry. Ms. Chemo.
It might be on our end because you're,
not showing as being muted, but we can't hear you.
-: Ooh
-: No.
Mr. Kenilis, Is Jeff available?
Mr. Kenilis: Oh, I'll check Justice Casiano
but Attorney Keane Martin can do as well.
My guess is that it's on her end because we tested
all of this last week.
She's gotta to try a different way
of getting her audio going.
There there was alternative as well.
She can dial in to a phone number,
that she has actually.
-: She put has headphones on and let's see if this works.
(indistinct)
We cannot still hear you.
Ms. Keane Martin, perhaps if you could dial in
on the telephone line?
Can you hear us?
She can.
she's responding to us.
I assume you can hear us.
And she's not in, right?
(indistinct)
We're still not unable to hear you, Ms. Martin.
(indistinct)
-: We're set.
Hon.Frank: Uhuh! This is absolutely terrific.
Miss. Keane, I think we can get you right now.
Can you hear us?
-: I can hear.
Can you hear me?
-: Yeah. Hon. Frank: We hear.
-: You hear me say, this is horrific?
-: (laughing) We did but we understand your frustration
and I'm gonna to tell you, just take a deep breath
and don't worry about it.
Okay?
Miss. Keane: Alright. -: (laughing) Alright.
-: Thank you, your honor.
Hon.Frank: You're welcome. -: Alright.
Well, we we'll start again in-
-: We'll start again at five minutes
and no apologies necessary.
Can we give it-
-: I appreciate your patience and the Clark
has been simply phenomenal.
I can't even give him enough credit
for all the patience he has had.
May you plead support.
My name is Patricia Keane Martins,
and I'm here on behalf of the Massachusetts Chapter
of the National Academy of Elder Law Attorneys,
the Real Estate bar, the Abstract Club, with a letter
of support from the Massachusetts Bar Association.
To answer the court's question as to whether
or not MassHealth is entitled to recover benefits
from a decedent's estate filed more than three years
after the decedent's death, including whether
or not the uniform probate code
section 190B, 3108 precludes such recovery.
Our collective answer is that the plain language
of 190B 3108 demonstrates
that it is an absolute extinguishment
of the authority conveyed to a personal representative,
and therefore does preclude recovery by MassHealth.
Further, 3803 with its reference to 118E,
does not create any exceptions or convey any additional
authority to the personal representative to act beyond
the three year extinguishment.
I had a whole speech prepared,
but I would like to address Attorney Fine,
did a masterful job walking through
the MassHealth process in the reasons that
this is a stature oppose and an absolute extinguishment
of authority conveyed to a personal representative.
I would like to add, that the court understand;
one, as Attorney Fine touched upon,
this class of people, are not people
that are rushing to attorneys.
And in addition, they often have exceptions.
Within the regulations there are exceptions and waivers
that these people are entitled to that they
may not even know that they have.
So what the legislature did is that they balances
as Attorney Fine said, the need of judiciary
to bring forward, right claims so that,
Real Estate bar is satisfied that the medical documents
don't have to be held on for 20 years.
-: Yeah, I get it.
I get your perspective.
I want you to step into the shoes
of the opposite side 'cause I get why Reber
and everybody else doesn't want certainty
and settled decisions.
Tell me how we protect the Commonwealth.
How does the Commonwealth protect itself?
If I'm on the opposite side, 'cause undisputed,
the Commonwealth is entitled to be compensated
for this money.
And if this were done properly,
the family not get the full benefit of this money.
Would be $108,000, whatever it is
would be given over to the state, right?
Or whatever that number is.
So, tell me how the state protects its interest
because I care that all of us are paying for this.
So tell me how the state protects itself.
-: This statute, in fact, encourages that.
The idea of the statute is for the Commonwealth
to step up for creditors to step up, because people
don't always do what they're supposed to.
So they have the ability to step up within a three year
period of time and file for a public administrator.
They also have a bunch of other advantages as a creditor,
as a sort of super creditor.
They have priorities of other creditors.
They have noticed provisions that other people don't have.
They have constructive and actual notice. So in some ways,
what they're asking this court to do is to fix an
administrative issue.
They just don't wanna to do it within a three year period
of time despite having note-
-: So this is basically inattentive or sloppy work on the
state is what produces this three year old time delay.
-: So I-
-: So I have less sympathy of the state can do it and doesn't
do its business than I do.
If the state is seeing gamed.
Tell me.
Is that, that we basically have a sloppy
state government that's not picking up.
-: I don't wanna say that, your honor.
They have the tools to move forward if they want to.
So whether or not it's sloppy, whether or not
they have other fish to fry, whether or not they just
don't get around to it.
That's not a question that I'm prepared to pose what I do-
-: They want the money in every case, right?
State government needs the money
and wants the money in every case.
So I'm just trying to understand,
it must be a lack of attention.
Then you're telling me, is that what you're saying?
-: They're not moving forward in a timely manner.
So they have every resource to do that.
But at some level, it is an administrative fix.
They have every opportunity to move forward in
a timely manner, which is three years, which is ample time.
It's two years more than you'd give your landscaper
that you owed money to who,
doesn't even have constructive notice, right?
So I don't want to besmart the Commonwealth.
Because I understand as you would ask me to,
that they have an interest in recovering this law and
the MUPC gives them that ability to recover within
a reasonable period of time, which is three years.
But after that, it has to close.
It has to be an end.
If no one brings it forward,
then for all the other interests that the legislature
had to meld together to come forward
with the MUPC that's the end.
Shell have no authority conveyed except for it
to confirm title or pay administration expenses.
Shell have no authority.
It is clear.
It is plain.
It is no exception.
It is the umbrella of all authority given.
803 does not convey authority.
118E does not convey authority.
It is clear.
It is there and they have ample time to move forward.
And if that means they need to tighten up their process,
then that is that what they need to do your honor.
So I appreciate your patience with my technical issues.
I am going over.
I would like to confirm that Amechi
does request that this court adopt the position
that's 3108, does in fact serve as
an absolute extinguishment
of all rights to be conveyed to the personal representative,
which would preclude predators, including MassHealth.
Thank you.
-: Thank you, Ms.Tean Martin.
Mr.Mark.
-: Thank you, your honors.
May it please the court, David Mark's Assistant
Attorney General for MassHealth.
As you well know, MassHealth is a program
of medical insurance for the truly, financially needy.
However, in determining eligibility for MassHealth,
one of the things both the federal and the state law provide
is that principle residences can be excluded from counting
of assets under a variety of circumstances.
Where the member intends to live in the primary residence
or returned to the primary residence
with a spouse.
Is living.
Lives at the residence where other individuals, children,
siblings might live in the residence.
And MassHealth allows a principal residence to be
excluded from the counting of assets up to
the value of over $800,000.
In other words, if someone owns a house worth
up to $800,000, that residence can be excluded
from the counting of assets.
-: Okay, maybe I'm missing the point Attorney Marks,
but whether it's $800, $500, $100
what relevance does that have if we're dealing
here with statute of limitations,
statute of repose and whether the agency
can find out if somebody has passed away easily enough
to assert their rights?
-: Yes.
So the point is that both federal and state law intend
that best health use a state recovery have in place
in the state recovery program and use it to pursue
a recovery of benefits paid under certain circumstances.
And the legislature in 190 B, section 3803
and 118 E sections 31 and 32 has set up
a very particular detailed thoughtful
program for enabling MassHealth to assert
its sustained recovery rights against probative States.
-: And so the argument that 190 B, 3108
that provides for this limitation on the powers
of a personal representative.
First States opened more than three years after the death.
Is a general statute and does not attend if you will,
MassHealth needs to protect its to state recovery.
-: Well, I understand that.
And I understand the specific language on a stat
in statutory interpretation in general language
and all of that.
But when I look at 190 B, section 3803
which sends me to one 118 E section 32,
there's two components.
And it doesn't seem that the MassHealth met
either one of them.
They weren't within four months of the appointment
and they weren't within a year of the death.
-: In this case, MassHealth presented its claim,
Well within four months of the approval,
of the personal representatives bond.
Hon. Cypher: Okay.
-: In fact, in this case,
the personal representatives bond hasn't
even been approved yet.
So- -: Okay.
-: In any event, the MassHealth is well within
the time frame there.
Hon. Cypher: Okay.
-: So what is in-
-: Isn't there chaos.
If we don't.
You can enforce this within three years.
You have all kinds of ways of doing this.
If you proceed right in a timely way.
And if you wait indefinitely,
we're gonna to have a States passing.
We're gonna have people having transferred the property
to bribe to people who are outside of the family
and you're gonna be collecting, how is that all gonna work?
Isn't it up to you to act within three years?
What's so hard about that?
-: The legislature has specifically provided that MassHealth
has four months from the time of the approval
of the bond of the personal representative.
Why?
Because the legislature understands and anticipates
that MassHealth does not necessarily normally obtain notice
of the death.
The entire argument of the state is based on this assumption
that MassHealth gets notice of the death.
The problem is that this is not born out
in any facts or in any law.
There is no legal provision that provides MassHealth,
a way to learn of a death other than the notice provisions
in the probate code and in section 32 of 118.
-: So even though you're providing benefits.
Do dead people keep getting benefits for years
without you doing something to turn them off.
I assume the answer to that is no, right?
-: Rather, your honor, just because benefits stop,
does not mean that someone died.
And this is what the estate is saying.
MassHealth is automatically unnoticed that someone died
when benefits stop.
-: This is not necessarily the case.
For example, in Ms. Kendall's case,
she stopped receiving benefits because I assume she,
when possibility, is that she recovered.
She didn't need healthcare benefits.
Or, one could no longer be financially eligible.
In which case benefits would stop.
What is important to recognize is that
the legislature created an entire scheme that turns,
in great measure on notice to MassHealth
of the petition of the estate.
-: So lemme just probe for a second.
So the four month period,
I understand you met the four-month period, not a problem.
Why?
If that's the case, why is the Abstract Club and Reeb?
Why are they so upset?
Is the four month period of time enable preventing
this type of catastrophe where the States get transferred
and everything else because nothing's happened within
the four months?
Is that why there's not a downside to going your way?
Is that clear?
I'ma try express that very clearly.
-: I'm gonna to answer whatever question I heard you ask
your honor.
(indistinct) (laughing)
-: There is no question that the four-month period protects
MassHealth from an intentional delay in probating estates.
There is no question-
-: I understand. I'm trying to ask you to look.
The same question that I was asking your sisters.
I want you to look from the other side of the V
for a second and tell me why they're protected.
Does the four month period mean that we're not gonna have,
40 years later, after an estate
has been transferred, or whatever.
Are they protected?
Are they overreacting because their interests
are protected by the fact that you
have to act within four months from the appointment
of the bond of the personal representative.
-: The problem is this assumption that
if the three year period doesn't apply to MassHealth,
then MassHealth will come running
in 20 years later and grab some assets.
It doesn't make any sense because
if the four month period runs from
the petition for a probate estate,
then whenever that happens and sometimes heirs wait.
They do that.
Or there's some conflict within a family.
Whatever the reason people wait
to probate and state.
Once they do and MassHealth has given notice
that four month period is running.
-: So again, so all these real estate lawyers
and trust estate lawyers, they're all overreacting.
I'm just trying. Again.
I'm trying to put you in the shoes of the opposite side.
So I understand that they're exaggerating
the problems that are caused because basically
this is a frozen estate nothing's happened.
It can go on for years and years and years,
but it's frozen in the family somehow.
And that four-month period means that nothing.
People besides the family aren't going
to be victimized by this.
Is that correct?
I'm just trying to make sure I understand it.
-: Well
-: I feel like both sides aren't giving me
the other perspective, which is normal,
but go ahead.
-: Well, there is no question that, this is part
of the situation with what's remaining
in the estate, in the case of MassHealth members.
It is typically just the primary residence
that someone has been living in.
There is no incentive to probate an estate simply
to deal with that residence if people are happy
to continue to live in it.
In this case, the residence was rented out during
this three year time period.
The point is that, yes.
It is true that if the heirs take no steps to probate
an estate, and if MassHealth does not learn
of a death, which it may not.
There is no established way for MassHealth
to learn of deaths.
Then.
Yes.
This could go on for years and years and years.
No estate is opened.
MassHealth doesn't learn of the death and people
are living in the house or renting the house without having
a personal representative appointed.
-: Right.
And you're saying.
I just want to finish one last question just to make sure I
fully grasp.
And you're saying, that we shouldn't be concerned
because the family whose delayed this probating
and taking advantage of it are the only people affected
by your delayed pursuit of this.
We're not gonna to have innocent third party victims
who bought the house or anything like that.
That won't be the case.
It's just the family who's manipulated
the process that recovery will be taken from.
Is that your argument?
Or am I overstating it?
-: Well, yes and no.
I don't think you're overstanding it but,
and this is one of the funny things about adapting
the estates argument here.
There is a provision right up front
in 118 E section 32, that says that if
an estate does not give notice
to MassHealth and the property is transferred.
That MassHealth has the right to go after that property
in the hands of the transferee.
Without regard to the date that
the probate estate was opened.
Could be years and years and years.
-: Isn't that the problem now?
-: I'm sorry your honor?
-: Isn't that the problem that you could
have an unwary buyer of the property and then all
of a sudden have MassHealth come after that person.
I guess my question to you is I understand that she said
that there's no mechanism right now for MassHealth
to be notified of the death of somebody
who's getting benefits.
But isn't that easily remedied?
Isn't there there a way for that to happen?
-: Without regard to whether there's a way
for that to happen.
That is not what the legislature intended or expected.
The legislature-
-: That's not what your sisters say.
That's they say that you have the opportunity,
MassHealth has the opportunity to get what it is owed,
and after a period of time, we have to close
the window because otherwise people are exposed.
You have to have an end to the process at some point.
-: But according to filings that MassHealth
has made with the legislature.
In 2018, for example, there were over 1.8 million members
of MassHealth.
There is no organized way for MassHealth to constantly
surveil it's 1.8 million members to determine when
and if someone has died.
And the legislature recognizes that.
The legislature has used the trigger
for the timeframe within which MassHealth must pursue
a claim present the claim.
And that trigger is notice from the opening of the estate.
-: I have one question, if that answered
your question, Justice Budd.
Hon. Budd: Yep!
-: Counsel, if I look at 190 section.
Is it 190? Yes.
Section 118 E section 32 and section i sub i says
that F if there's been a year after the death,
you have authority to designate a public MassHealth
has an authority to designate a public administrator.
That suggest also to me,
that they're contemplating in this some kind of end,
or some kind of limitation on MassHealth's ability
to just come in at any point.
-: The MassHealth's ability or authority to request
the appointment of a public administrator, depends
on its learning of the death.
And the legislature has constructed this scheme with the
recognition that MassHealth might not learn of the death.
And so it has created a separate alternative time limit
for MassHealth to pursue its claim, four months!
Very short, but from the time of the opening of an estate.
Why?
Because the way the law provides MassHealth will learn of
its opportunity to recover on an estate is by getting notice
of the opening of an estate.
Not necessarily by learning of a death.
MassHealth may learn of a death, and it has the right
to protect itself by using a public administrator.
But, the legislature itself has understood
that the time limits that apply to MassHealth cannot turn
on the date of the death.
Because otherwise clever estate planning attorneys
would advise their clients who are living
in the house, or renting the house,
to simply wait three years,
and by doing so would then defeat MassHealth's ability
to seek estate recovery.
And that is the problem with reading or with failing
to read 803 F and 118 section 32,
as providing a separate timeframe for MassHealth to assert
its estate recovery efforts.
-: I believe Justice Lowy has a question?
-: Yeah. Quickly.
Thank you, justice Casiano.
So, this sounds a lot like a public policy discussion rather
than a statutory interpretation discussion.
But as a matter of statutory interpretation,
you put all your eggs into the argument
that 803 F is more specific than 1084.
And the problem with that is that
you can't reconcile them both existing,
but you can reconcile them both existing.
803 F is a specific provision that gives you not just
a year, but three years and within four months
of the personal representative being appointed
and 1084 says okay, but it's a hard three years
because it's statute of repose.
Those statutes can be reconciled.
They can be reconciled by giving additional time
to MassHealth.
So which is more specific and which is more general,
it doesn't help you as a matter
of legislative interpretation.
You might make a very compelling argument
that you need to have noticed.
By the way, you could have noticed by only not looking
at 1.8 million people, but looking at the people who
have stopped benefits.
But putting notice aside,
the problem with your argument is that it
can reconcile both statutes provisions in the statute.
So we don't get into general and stuff.
-: Well, here's one way in which you can't reconcile them
because as you say, to read
the three-year late unlimited provision as applying
to MassHealth, that means that MassHealth ability
to pursue a state recovery four months after the approval
of the bond is destroyed in those cases
in which the estate has not been opened within three years.
So it totally renders that part of section 32 a nullity.
It also renders the requirement to give notice itself
a sort of an absurdity.
In other words, the statute requires the statutes.
Plural.
Require that in every estate,
in which there's a petition for the administration
of a state notice is given to MassHealth.
Every single estate in Massachusetts, notice is given
to MassHealth by certified mail.
However, the upshot of the state's argument here
is that, for every estate that is a petition
to be opened more than three years after
the death, that notice is pointless.
It is a wasted effort.
It is a waste of money.
But the law requires it anyway.
Why?
MassHealth gets a notice three years after the death
and says, "Oh, isn't that nice to know of."
Throw that in the garbage.
This is the problem.
The problem is, the legislature has created an entire
specific provision scheme for protecting
MassHealth estate recovery efforts
and this general language.
There's nothing specific about 803
(indistinct)
Sorry.
(chuckling) Three.
1084 there's nothing specific about it.
It just states, "personal representatives has limited powers
after three years after the death."
There is no reason to believe that the legislature intended
that provision to specifically cut off MassHealth's rights
when it in very specific terms, went out of its way
to protect MassHealth's rights in all kinds of other ways.
This argument-
-: You may have answered the question.
-: Is that satisfactory Justice Lowy?
-: Yes.
Thank you very much, Justice Gaziano.
-: Any further questions of Mr. Marks.
Hon.Cypher: No, Thank you. -: All right.
Thank you Mr.Marks.
-: Thank you your honors.
I would rest on my brief.
-: So we'll take a five minute break
while Cole Keneally sets up the next case.